Welcome to our education employment team’s latest monthly case update.

Results-based commission in statutory holiday pay

In British Gas Trading Ltd v Lock and another UKEAT/0189/15, the Employment Appeal Tribunal has followed the approach taken in Bear Scotland Ltd v Fulton and others and has upheld the Employment Tribunal’s finding that the Working Time Regulations 1998 should be interpreted in such a way to conform with the requirements of European law.

The Employment Appeal Tribunal has held that results-based commission should be included in calculating the entitlement to the four weeks’ statutory holiday pay derived from the Working Time Directive. This is in line with cases of the Court of Justice of the European Union, including the ruling in Robinson-Steele v RD Retail Service Ltd, which provides that paid annual leave should be based upon a worker’s ‘normal remuneration’.

However, the decision does not provide any further guidance in relation to the period of time which should be analysed when calculating average pay for the purpose of determining the rate at which annual leave should be paid.

Amending a tribunal claim and further early conciliation

In Mist v Derby Community Health Services NHS Trust UKEAT/0170/15, the Employment Appeal Tribunal had to consider the inter-relation between the requirement for early conciliation and an application to amend an existing claim to add a new respondent.

The Claimant was employed by Derby Hospitals NHS Foundation Trust (the Hospital Trust) until the contract on which she was engaged was transferred to Derby Community Health Services NHS Trust (the Community Trust). The Claimant resigned and brought various claims against the Hospital Trust, after going through the early conciliation process in relation to those claims.

The Claimant subsequently applied to amend her claim to include the Community Trust as second respondent. This claim was subsequently struck out as being out of time and the Claimant appealed against this decision to the Employment Appeal Tribunal. Before the Employment Appeal Tribunal, however, the Community Trust argued that the Employment Tribunal did not have jurisdiction to hear the claim against it as the Claimant had failed to comply with the early conciliation requirements.

The Claimant’s appeal against her claim being struck out as being out of time was successful and as far as the early conciliation point was concerned, the Employment Appeal Tribunal said there was no requirement for the Claimant to go through early conciliation again before applying to amend her claim.

In coming to this conclusion, the Employment Appeal Tribunal relied on the earlier case of Science Warehouse Limited v Mills, where the Employment Appeal Tribunal had concluded that it was not necessary for a Claimant to again go through the early conciliation process before applying to amend a claim to add a further cause of action which had arisen after the conclusion of the early conciliation period.

Employee unfairly dismissed for disclosing confidential client information

In the case of Stimpson v Citibank N.A. ET/3200437/15, the employee was a trader and was dismissed for gross misconduct by his employer for inappropriately sharing confidential client information with other traders at different banks via a chat room. In dismissing the employee, the employer relied upon its handbook and code of conduct, which set out that such information should not be shared.

The Employment Tribunal found that his dismissal was unfair and wrongful, although the employee had contributed to his dismissal. In particular, the Employment Tribunal found that the employer had failed to properly investigate allegations that senior management had encouraged a more relaxed approach to confidentiality to that contained in the handbook and code of conduct.

The Employment Tribunal also concluded that the penalty of dismissal was not within the range of reasonable responses given the employee’s lengthy service (25 years) and his reasonable belief that his conduct was permitted.

The case is a useful reminder that it is not enough merely to have appropriate policies and procedures but also that they must be adhered to by senior management and enforced where necessary.